Author(s):

Abstract:

Can
the young be held accountable for their crimes?
At common law, juveniles were entitled to a presumption of incapacity,
but were subject to criminal liability on an individualized basis: demonstrated
malice supplied the want of years. In
Graham v. Florida, the United States Supreme Court rejected this principle, and
held that juveniles categorically could not be sentenced to life without parole
for crimes other than homicide. Embedded
in the Court’s holding, this Article argues, are a simplifying assumption about
the relative maturity of juveniles and adults and a moral claim about the
culpability of homicides and nonhomicides, and both this assumption and this
claim are demonstrably false in a nontrivial number of cases.

This
Article focuses on the facts of some of these cases. One cannot assess the culpability of
particular defendants unless one considers, without artful euphemisms or
convenient elisions, what they did. And
what certain crimes reveal is that that there are violent juvenile offenders—fortunately
rare—who are as least as mature and culpable as the typical adult violent
offender. The Article also considers
lower court applications of Graham and finds, for the most part, marked
skepticism. The Supreme Court’s general
theory of juvenile immaturity has failed to impress judges confronting
particular cases. The Court’s central
claim about the relative culpability of adult and juvenile offenders originates
from a failure to confront inconvenient facts and a belief that human nature is
sufficiently captured by the three standard deviations that surround one’s own
experience in the world. Lower court
judges have access to a wider data set in reaching contrary conclusions.